Citation Nr: 18159281 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-58 701 DATE: December 18, 2018 ORDER Service connection for breast cancer, to include left breast removal, is granted. Service connection for female infertility is denied. REMANDED The issue of entitlement to service connection for a thyroid condition is remanded for additional development. FINDINGS OF FACT 1. The Veteran’s breast cancer was incurred in service. 2. A diagnosis of female infertility has not been shown during the course of the appeal, or at any time proximate to the filing of the claim for service connection. CONCLUSIONS OF LAW 1. The criteria for service connection for breast cancer are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for female infertility are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1983 to October 1986. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran died in October 2015. The appellant is the Veteran’s surviving spouse. In January 2016, the appellant submitted a Request for Substitution of Claimant upon Death of Claimant form. In a January 2016 letter and November 2016 Statement of the Case, the RO determined the appellant is a proper substitute under 38 C.F.R. § 3.1000(a)(1)(i). In light of this determination, the Board will proceed to adjudicate the merits of this appeal as the appellant now steps into the shoes of the Veteran. The Board notes that the appellant was previously denied service connection for cause of the Veteran’s death in an October 2017 rating decision. Considering the Board’s finding herein that the Veteran’s breast cancer is related to exposure to contaminated water while stationed at Camp Lejeune during service, the Board refers this matter to the AOJ for proper adjudication. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Service connection may be granted on a presumptive basis for certain diseases associated with exposure to contaminants (defined as the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE or PERC), benzene, and vinyl chloride) in the on-base water supply located at Camp Lejeune, even though there is no record of such disease during service, if they manifest to a compensable degree at any time after service, in a veteran, former reservist, or a member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at the United States Marine Corps Base Camp Lejeune and or Marine Corps Air Station New River in North Carolina, during the period beginning on August 1, 1953, and ending on December 31, 1987. 38 C.F.R. § 3.307(a)(7). The following diseases are deemed associated with exposure to contaminated water at Camp Lejeune: kidney cancer, liver cancer, Non-Hodgkin’s lymphoma, adult leukemia, multiple myeloma, Parkinson’s disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer. 38 C.F.R. § 3.309(f). For disabilities not presumed by regulation to be due to exposure to contaminated water at Camp Lejeune, the Veteran may still establish service connection by showing that any such disability is, in fact, directly and causally linked to exposure to contaminated water at Camp Lejeune, or any other incident or injury in service. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). 1. Entitlement to service connection for breast cancer, to include left breast removal. There are two primary questions before the Board in determining whether service connection is warranted in this claim on a presumptive basis: whether the Veteran had no less than 30 days of service at Camp Lejeune and whether the Veteran’s breast cancer was due to an enumerated disease associated with exposure to contaminated water at Camp Lejeune. The record reflects the Veteran was stationed at Camp Lejeune during active service from September 1983 to October 1984. Therefore, the Board finds the Veteran met the threshold duration of service during the applicable time period required under 38 C.F.R. § 3.307(a)(7)(iii). Next, the Board notes that diagnoses and treatment for breast cancer and its residuals, are confirmed by post-service treatment records. The Veteran was first diagnosed with breast cancer in 2006 with a left mastectomy performed in June 2007. As breast cancer is not a disease presumed by regulation to be due to exposure to an herbicide, the outcome of the case, therefore, turns on whether breast cancer is in fact, directly and causally linked to the Veteran’s presumed exposure to contaminated water. In this regard, a VA opinion was obtained July 2015. The VA clinician opined that it was less likely than not that the Veteran’s breast cancer was the result of contaminated water exposure at Camp Lejeune. The clinician reasoned that although the Veteran served at Camp Lejeune, North Carolina, and was exposed to contaminants, the risk of being diagnosed with breast cancer increases with age, with 2 out of 3 cases of invasive disease being diagnosed after the age of 55. He also indicated that it is estimated that 85 percent of breast cancer occurs in women with no family history of breast cancer. “These occur due to genetic mutations that happen as a result of the aging process and life in general, rather than inherited mutations.” The examiner further noted that while white women develop breast cancer more often that black women, African American women are more likely to die of breast cancer. The Veteran was an African American woman with a family history of breast cancer. The examiner also noted the known relationship between cigarette smoking and exposure to second hand cigarette smoke and the increased risk of breast cancer. The records for the Veteran indicate that she had been smoking cigarettes since she was 18 years old, including through her treatment for the breast cancer. The examiner stated that when the US Environmental Protection Agency studied the four solvents found in the drinking water at Camp Lejeune, they found suggestive, but limited data indicating a link between breast cancer and both Trichloroethylene (TCE) and Tetrachloroethylene (PCE) and no data suggesting a link between Benzene or Vinyl Chloride and breast cancer. He also noted that the Institute of Medicine conducted an extensive review of the literature which looked at solvent exposure and an increased risk of cancer. This review identified multiple studies that failed to identify a statistically significant link between solvent exposure and an increased risk of developing breast cancer. The examiner also explained that certain types of workplaces and occupations have been studied because they are known to involve exposure to organic solvents. Typically, these levels of exposure are significantly greater than the levels of exposure potentially sustained by service members from the drinking water at Camp Lejeune. The examiner concluded that since the studies that have looked at the question have failed to find an increased risk of breast cancer in the low and medium work place exposure categories, it makes sense that there is no increased risk of breast cancer following a short time (1.1 years) of exposure to an even lower level. Therefore, the examiner opined that based upon the currently available literature, the Veteran’s short length of time at Camp Lejeune (1.1 years), the estimated small magnitude of her potential solvent exposure at Camp Lejeune, her smoking history, her family history of breast cancer, that the Veteran’s breast cancer was not due to her exposure to Camp Lejeune contaminated water. A private opinion was submitted by a radiation oncologist in July 2017. The clinician opined that the Veteran’s toxin exposure at Camp Lejeune more likely than not contributed to the development of her breast cancer. The clinician noted that the Veteran was presumed to have been exposed to PCE, TCE, and benzene toxins during her time at Camp Lejeune and that these PCE and TCE compounds were chemical cleaning agents of the organochlorine group and used as degreaser agents and dry-cleaning solvents at the time of the Veteran’s exposure. The clinician indicated that it was well-established that TCE and PCE percolated into the aquifer that supplied the base and were in underground fuel storage tanks adjacent to the base and leaked more than 1500 gallons of fuel per month into the land surrounding the aquifer. Benzenes from the leaked fuel joined the PCE and TCE contaminants as toxic flow into the water supply. The clinician noted that the Veteran did not have other risk factors that would have contributed to the development of her breast cancer. Risk factors typical for breast cancer include family history, exposure to excess hormones, previous radiation exposure, and age. The Veteran was 43 years of age at time of diagnosis and without a family history and which points to an environmental exposure. Although the Veteran was a smoker, the clinician noted that this link is relatively weak in the association with breast cancer. The Veteran had no history of hormone exposures, excess estrogen, or excess progesterone that would otherwise contribute. The clinician reasoned that TCE, PCE, and benzenes have clearly been shown to cause deleterious health effects in those exposed and have been clearly linked to the increased rate of future cancers, including breast cancer. The clinician opined that there was a clear record of exposure and a clear association of her breast cancer with TCE, PCE, and benzene exposure, as a contributing factor in a multi-factorial exposure picture. The clinician referenced a study of male breast cancer and Camp Lejeune exposure, “Evaluation of contaminated drinking water and male breast cancer at Marine Corp Base Camp Lejeune, North Carolina: a case control study” Environ Health. 2015 Sep16; 14:74, of which findings showed a possible association with breast cancer and exposure at that site. The examiner reasoned that male cancer is easier to study due to the separation of contributing factors but that the pathogenesis is the same as female breast cancer. He also referenced another study “Risk of breast cancer among enlisted Army women occupationally exposed to volatile organic compounds,” Am. J. Ind. Med. 2005 Sep.; 48(3) 157-67, showing almost a 50 percent increase in breast cancer among exposed women. The clinician concluded that although there are other identified causes in her history that could have led to breast cancer this is a multi-factorial disease and her earliest exposure to Camp Lejeune contaminated water could be the most important factor as the other causes are minor and TCE, PCE, benzenes and vinyl chloride exposure has been found to cause persistent health effects in animals and people. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Here, in light of the positive and negative evidence of record, the Board finds that the evidence is at least in equipoise regarding whether the Veteran’s breast cancer was caused by Camp Lejeune contaminated water. Hence, affording her the benefit of the doubt, service connection for breast cancer is warranted. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.102; see generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 2. Entitlement to service connection for female infertility. Service treatment and personnel records and post-service treatment records are absent complaints or diagnoses of infertility. VA treatment records document that the Veteran delivered her first child in 2005 at 41 years old and that she subsequently elected to have an intrauterine device implanted in December 2005, as a means of permanent birth control. A VA opinion was obtained in July 2015. The examiner determined that the Veteran was never diagnosed with female infertility. He opined that female infertility was not related to service as the available medical records indicate that the Veteran was never medically evaluated or treated for infertility and has not been diagnosed with such a condition. After review of the record, the Board finds that service connection for female infertility is not warranted. Turning first to the Veteran’s and appellant’s statements, the Board acknowledges that laypersons are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, while the Veteran and appellant may be competent to report the manifestation of symptoms of infertility, she is not competent to provide medical opinions regarding the causes or aggravating factors of that condition, particularly insofar as such diagnoses of infertility are concerned. As the Veteran had not shown to have appropriate medical training and expertise, she is not competent to render probative (i.e., persuasive) opinions on medical matters. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Bostain v. West, 11 Vet. App. 124, 127 (1998). Hence, the lay assertions are of minimal probative value. In addressing the competent evidence of record, the Board finds that the negative opinion of the July 2015 VA examiner, provided after reviewing the entirety of the claims file, is highly probative as it reflects consideration of all relevant facts. The examiner provided a detailed rationale for the conclusion reached. His conclusion is supported by the medical evidence of record, which includes no complaints, treatment, or diagnoses of female infertility. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Significantly, there is no competent medical opinion of record to the contrary. The most probative evidence indicates that the Veteran did not have a current disability of female infertility. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1131. In the absence of proof of a current disability of female infertility, service connection for that disability cannot be established. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The objective results from the July 2015 VA examination show that the Veteran did not have objective findings or a condition of female infertility. The Board has considered the decisions of the Court of Appeals for Veterans Claims in McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim) and Romanowsky v. Shinseki, 26 Vet. App. 289, 321 (2013) (considering the application of McClain to a situation in which a disability manifests prior to the filing of a claim for VA benefits and then resolves before the claim is adjudicated). However, in this case, the Veteran has not been shown to have a current disability of female infertility at any time during the appeal period, or prior to the filing of her claim. Without probative evidence of a current disability, the claim must be denied. See Degmetich v. Brown, 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary); Romanowsky, 26 Vet. App. at 293; McClain, 21 Vet. App. at 321. In sum, the most probative evidence indicates that the Veteran did not have a current disability of female infertility. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and service connection for female infertility must be denied. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). REASONS FOR REMAND Entitlement to service connection for a thyroid condition is remanded. A VA medical opinion has not yet been obtained in connection with the service connection claim for a thyroid condition. VA must provide an examination when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to decide the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Lay testimony as to continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service, and the threshold for finding that the disability (or symptoms of a disability) may be associated with service is low. Id. at 83. Furthermore, the Veteran is competent to testify to in-service injuries, symptoms, and events. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Given the Veteran’s reports attributing her thyroid condition to the conceded exposure to Camp Lejeune contaminated water during service, the Board finds that the low threshold of the McLendon standard has been met in this instance, and that a medical opinion is necessary and should be obtained on remand. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: 1. If there is outstanding evidence, the appellant should be invited to submit such evidence, including medical literature or nexus opinions. The appellant should be provided an appropriate amount of time to submit this evidence. 2. Obtain a VA medical opinion to determine the etiology of the Veteran’s thyroid disability. The examiner should address the following: (a.) With respect to her thyroid disability, is it at least as likely as not (50 percent probability or greater) that this disability arose during service or are otherwise related to any incident of service? Please explain why or why not. In providing this opinion, please comment on the significance, if any, on the Veteran’s conceded exposure to Camp Lejeune contaminated water. Please note that a medical opinion that concludes that a disease is not related to service solely because there is absence of medical records is inadequate. (b.) A rationale for any opinions expressed should be set forth. If the examiner cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 3. After completing the requested actions, and any additional action deemed warranted, readjudicate the appellant’s claim. If the benefits sought on appeal remain denied, the appellant and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Bilstein, Associate Counsel